Posted
by
Soulskill
on Monday January 30, 2012 @04:39PM
from the cloudy-skies dept.

New submitter advid.net writes "According to the Associated Press, user data from the recently-closed file-hosting site Megaupload could be destroyed as soon as Thursday. Apparently Megaupload paid another company to actually store the data. 'But Megaupload attorney Ira Rothken said Sunday that the government has frozen its money. A letter filed in the case Friday by the U.S. Attorney's Office for the Eastern District of Virginia said storage companies Carpathia Hosting Inc. and Cogent Communications Group Inc. may begin deleting data Thursday. ... The letter said the government copied some data from the servers but did not physically take them. It said that now that it has executed its search warrants, it has no right to access the data. The servers are controlled by Carpathia and Cogent and issues about the future of the data must be resolved with them, prosecutors said."
There's also been talk of a lawsuit against the FBI over users' lost files.

That is absolutely true, but isn't is strange how when the RIAA or other well funded trade group doesn't like something they line a few pockets and get it made illegal, but when the population doesn't like it there is nothing to be done?

Nothing to be done except, of course, for calling representatives and writing letters until a suitable about of attention is garnered to show that them opposition to a law is greater than what the RIAA/MPAA claims its support is.

The short answer is no. "They" (by which I assume you mean the US govt) cannot delete the data. What they *can* do is take steps which will almost certainly result in the data being deleted by the third parties hosting it.

The result is something like an extrajudicial execution. They've ensured Megaupload will die, even if the company is exonerated in the courts.

The government is the perfect example of 'not my department.' The government doesn't have to care what gets crushed under the wheels of 'justice'. The people who are supposed to care were the ones who pointed the government in that direction and said 'GO'.

ie: the government has the excuse in the form of: The people told me to go do this, it's not my job to question, it's my job to do. They told me to do this by passing the laws that gave me the power to do this. I must assume that they factored in the costs and potential outcome when they granted this power in the first place.

This is why your first worry shouldn't be 'Will this give the government the power to solve problem xyz' but 'How is it possible for this power to be abused? And when it is inevitably abused in that manner, is it worth the cost?"

Its the US goverments job to ensure that if they arrest somebody, they don't starve to death waiting for trial.By the same principle: If I accuse somebody of a crime, to harm their corporation, I must be fully liable for all damage, and the prosecturs must be fully liable for all damage they cause.-QED.

It is also destruction of exculpatory evidence. If Megaupload makes the claim [true or not] that the majority of the content was non-infringing, how will they be able to prove/disprove this? Or, the reverse argument as well.

Imagine if this was done to YouTube. YouTube has at least one infringing clip, but it also has a lot of original content that would be lost.

You're driving up the hill in your car, which you use to deliver parcels. The police drag you out and confiscate a parcel that they say proves you are involved in drug trafficing. They then leave the car alone without using the parking brake. The car rolls downhill, crashes into a tree and bursts into flame, destroying the parcels left inside.

From what I understand the search warrant has already been served and completed. Once it's completed that's it, if they want more data they need another warrant against the 2 companies hosting the data (neither of which is Megaupload).

No. See the indictment [scribd.com]. Very interesting document. The real evidence against these guys is not on Megaupload at all. It is in the emails they sent to each other and to outsiders.

The Feds' case hangs on the allegation that these guys formed a criminal conspiracy, i.e. that they knew that they were breaking laws and that they conspired to hide this because of the vast profitability of their operation. The evidence is all email records, bank statements, and Kim Dotcom's fleet of luxury cars.

if you are storing your data in the cloud "backups" mean you use multiple companies. that way if one company is shutdown, then your data is still in the cloud elsewhere. view it as losing a disk from a raid array (yes i know raid isn't meant for backup) you need to start rebuilding the array before you lose the rest.

You betcha. I take all my important data and put store in in my old dell PC. Plugged right into the wall socket, stored on my one big drive, and put into a nice little box in the corner closed off so no one can see it.Lets face it. If you are going to use a cloud service it is because you don't have the resources to have Redundant servers hosted at multiple locations, with UPS power supplies, and RAID configuration, in a well climate controlled room.

If we are to have a 'war on piracy', I suppose it is only to be expected that we should soon enough have some of what some elegant coiner of dispassion euphemism though to refer to as "collateral damage"...

Selfishly, I'm inclined to be pleased, in a way. As long as it is possible for people to think that it is 'just about the pirates' or 'the innocent have nothing to fear', acquiescence will be the order of the day. Wholesale and flagrant destruction of bystanders' property should provide a valuable example of how false that thinking is.

Had no effect when the feds stormed in and took whole racks of equipment at a hosting providor, knocking legit sites off air as they scrambled into disaster recovery mode.Paraphrasing, "when they came for the data of the filesharers, noone siad a word because it did not affect them, then they came for the data of the political activists, and noone said a word as we were all of course loyal citizens. Now they have come for my data, and I have nowhere to go to get information or to protest.

The FBI is using the "Nuke 'em from orbit, it's the only way to be sure", offense.

The article says 50,000,000 users, it doesn't say how many files each might have.

If they keep any of them, there might be embarrassing disclosures like un-owned MP3's downloaded by congresspeople and their kids.
There might be department of Justice employees with unlicensed software. Even White House staffers might have kinky files.

It would take every FBI agent several years to comb through all that data. It's better for them to just destroy it all.

You bring up an interesting point, but the FBI is not deleting any data. They have frozen Megauploads assets, so they can't pay to keep the data hosted. Therefore the 3rd party hosting will delete the data. I assume the FBI has grabbed all the data they want to try and make their case, and left everything else to be thrown out.

Do you realize how many rare anime series or games were on megaupload? Do you understand how impossible it is to find out of print manga, or how insanely expensive it is to buy rare material from overseas if you can even find it?

down side of the cloud where your data end up in the hands contractors or sub contractors and so your data can be a risk if say the main contract does not pay it's subs or wants to change the terms of there deal.

This action will destroy the cloud storage/computing industry before it gets off the ground. Who will be able to trust their data to any cloud storage provider [used for disaster backup] that can be subject to such seizures/destruction?

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If you use a provider to archive old data to free up some space, how would you get it back if it's destroyed?

Doesn't this mean that the FBI took down the wrong site... I mean the legislation is all about 'indiscriminate hosting' of copyrighted data. Doesn't that mean they should be taking down Carpathia Hosting?

Open account with Company A. Company A doesn't own servers, they outsource their servers to Company B. Company B has some storage, but outsources some of this to Companies C, D, and E (...and F, and G...)

Due to fluctuating demand, costs, and performance modeling, Company B migrates data periodically between storage vendors, who in turn, migrate data between data centers.

At any one point, the person with an account at Company A can access their

Megaupload is a Hong Kong based company. The only reason they were charged in the US was because they used servers for hosting in the US. This pretty much sends a message to anyone who might do business in the States that they are not welcome, and that justice is pretty much bought and sold by how much money and influence you have. This is not a good message to be sending out to businesses overseas, looking to invest here. Freezing a foreign company's assets worldwide over what is a domestic issue is going to give a lot of international entrepreneurs reasons to look elsewhere.

Kim Dotcom did the smart thing- he made sure there was a time limit set on his user's data if someone bigger than his company came along and tried to forcibly take it. By the time someone shutting down his operations finally figured out where the real data was held, all of it is going to be deleted- unless they return his funds and let him continue to operate. Damned if they do shut him down, because now he and his company are a damaged party and the US takes a hit in the international markets, damned if they don't shut him down completely, because then the Feds look weak and ineffectual.

Exculpatory evidence and discovery for the trial are irreparably damaged by the Prosecution, the Defendants can now sue in civil and international court for damages (whether they see them or not), and Kim Dotcom may even become a cause celebre. That is, if the US doesn't hold him indefinitely under the NDAA...

The A-team had stories like this all time, small nice family company being muscled out of business by big evil company.

The US constitution provisions for protection of the individual are NOT as many think to get the guilty off but to protect the average innocent citizen from being bullied into submission.

The principle is simple, if I want to stop you, I can have you arrested and your crops will rot on your farm, your will unable to supply your customers, you will run out of cash and bam, I can buy your farm cheap... I don't need to have you found guilty as long as I can keep you under arrest for long enough. There are plenty of variants on this, in corrupt countriest the way to get a bribe as a custom officer is to hold up the goods of a company for inspection until they either pay or go out of business for being unable to deliver.

This is even done on a country scale. Romania did not like that The Netherlands is blocking Romania becoming part of the EU free labor traffic, they claim this is racist (Romania is one of the worsed human rights abusers in the EU with their treatment of gypsies) and so they blocked dutch product at the border trying to put pressure on the Dutch government. Didn't really work since it only re-inforced the view that Romania is not yet ready to fully join the EU.

But the tactic itself remains, get the police to smash your opponents goods during a search and force them out of business.

Megaupload itself is shady enough but then the content industry has many accusations against it as well, just that he who pays the piper determines who ends up in court or not. How many settlements has the content industry agreed to to avoid being found guilty in open court? Quite a few in the last couple of decades.

There are lots of filesharing methods, the error Megaupload made was trying to go semi-legit... artists had publicly voiced their support for a new scheme Megaupload wanted to introduce... coincidence that the very next week they are put out of operation by the rent-a-cop FBI? Maybe and Saddam considering selling oil in Euro's just a bit before being removed from power had nothing to do with it... first Iraq war was over the conquering and subjegation of another nation and he was left in power unharmed. He considers undermining the dollar and BAM, he swings.

And gosh, all the oil nations that consider dealing in euro's are on the danger list to... how amazing a coincidence.

You can destroy someone in the courts without ever needing to find them guilty. But if history has shown us anything, their will be 10 megauploads to take this ones place and they will be harder to take down. And they will not bother trying to go legit or try to work with artists. They will just copy all and damn the rest. Want to download files right now and not deal with filetubes with endless vapor ware? Go russian. I tried to find some old ebooks, go west and it all leads to overpriced book sellers, go russian and you find entire libraries with no popups, no spam, no search bars, just simple downloads. Because nobody in Russia gives a fuck. If the FBI tried the same as they did in New Zealand their officers would come back in body bags and asking the former KGB to investigate would be very ironic indeed.

They took down napster which led to the demise of cutemx on which anime was shared... and all that happened is that you now got anime torrent sites that are run so smoothly they release automatic updates and actually have an rating system telling if there is a better version out there for series 10-20 years old (torrents for new stuff are easy but finding a very old series with 20-30+ seeders and only leeching... that is class).

It is like stomping ants, only these don't just come back in greater number, they come back stronger and fiercer... and if I am a typical person, their users come back a little bit more reluctant to buy from the RIAA/MPAA every again. It ain't just being cheap anymore, now it is a case of principle!

Megaupload hasn't been proven guilty yet. If they are not allowed to pay their creditors to stop their users data being deleted it is effectively destroying the company beyond repair based on an opinion since there has been no trial yet.

not quite. Its like the FBI seizing all units of a storage facility where the storage facility itself is believed to be storing illegal materials on the premises. The case about them isn't about users storing illegal materials, its about them knowingly allowing it, hindering the ability for the rights holders to remove it and building their entire business based on those illegal materials.

not quite. Its like the FBI seizing all units of a storage facility where the storage facility itself is believed to be storing illegal materials on the premises.

Having destroyed the material, how do they prove it was illegal? Even if they can point to a few files, how do they show that the majority of files are infringing (which will be required under US law)?

No, the objective here is simple: put Megaupload out of business, irrespective of what is legal or not. This deletion will put them out of business.

I don't disagree. However, the argument for a suit lies in the FBI deleting the files, which they haven't and can't. They are only limiting access to and removing the ability to pay for the upkeep. their reasoning would be that legit users would have to file suit against mega* to get reparations.

No, it's like the FBI showing up with the CEO's of walmart in tow, prying the lock off a couple of the storage units and the CO's pointing at random objects and yelling "They stole that, and that, and that..." meanwhile the renters of the storage locker are in China, and the owner of the storage company says "Well they could have gotten that at Target you know... also, how do you know they stole this and didn't actually pay for it? Have you even asked them?" The FBI then arrests the Owner of the storage unit, who now can't pay its utility bills... water, sewer and power are cut off... the buildings catch fire and the FBI tells the fire department "no need to put that out... we have the truth, let the lies burn."

When they come to take your rights away, they start with the people that clearly don't deserve them. When they come for yours, well... it's a little too late then isn't it?

Don't get me wrong, I am of the opinion that the government is in the wrong here. I merely pointed out an inaccuracy in an analogy. This is commonplace here you know...

I fight for my rights, I don't see many that do. I wore a uniform, I shipped overseas, I operated on behalf of our government thinking that I was defending the rights of U.S. citizens. Today i fight with my signature, my vote and my sway with others. The U.S. government or any government can come after me and try to take my rights, but they w

Exactly. Some people paid for this service and used it to store legitimate files. From what I've read, there's little question that MU employees and management knew their service was being used to trade a lot of infringing material, and even went so far as to play shell games with download links to avoid complying with the DMCA, but what of the people who used it legitimately, paid for the privilege, and are now going to have their files wiped? It's not like MU will have any assets to go after once this who

Welcome to the cloud. If your data is more valuable than the storage space it's written to, then keep your own copy. In this case, it was the government that precipitated the shutdown of a service provider, so everybody's looking to blame them. Who are you going to blame when market dynamics cause a company to just go bankrupt? This reminds me of the outcry that happened when they finally put a bullet in (I believe it was) GeoCities.

Indeed. I've seen this leveled as a criticism against using "the cloud," but really, only a complete moron would keep their only copy of anything important in the cloud. Even Google could somehow die tomorrow. You just never know.

But with GeoCities, there was ample warning. There really wasn't in this case, though the writing was on the wall. I never handed one red cent over to MU considering I saw their service was used predominantly for copyright infringement--just too dicey a proposition for me.

If the provider goes down due to bankruptcy, there would be a warning period of time in which users can take down their files and make copies and move to other services. Companies don't go bankrupt overnight.

The trouble is that regardless of whether or not the uploader has a copy, losing the cloud copy is still a loss to the people it was intended for. Perhaps it could be replaced by the uploader or someone who downloaded it previously, but there is no guarantee of this... People move on, forget that email's password, die, etc. While this loss may not be _actionable_ (e.g. a by a lawsuit), it's foolish to pretend it's not a loss all the same.(And that's not even covering all the effort lost to simply reupoadi

Let's say that U2 has a new song that's almost out. It gets leaked (somehow) to the internet. Bono sends a copy to Edge on MegaUpload so that he can play it for a performer from their opening act so that they can hear it and end their act with a song that's not too similar. U2's manager sends a copy to an advertising agency to use in a commercial. The band sends a copy to the execs at Island Records so that they can send it to radio stations. Also, a pirate makes it and the Megaupload link available for download.

The lawyers for U2's label (rightfully) demand immediate takedown for the pirate link, because it's being used for piracy. How many of the 4 copies are illegal?

The answer is probably one. MegaUpload would be right to leave the other 3 identical copies alone. This is the problem with copyright infringement claims. The files don't come with dossiers explaining who is and is not allowed to listen to it. That's why copyright and fair use must be decided in a court of law.

The data was in a colo.. in my (professional) dealings with the authorities, provided you are cooperative (and by this, I don't mean coughing up things voluntarily, I mean they have a proper warrant that legal has reviewed, etc.).. they are sensitive to disrupting your business and in many cases enlist the help of the on-site technicians to identify the evidence they seek (which often times isn't so simple as "that machine over there").

how about legit files of your own creation that you had complete ownership of and decided to put on a cloud service?

Still, I don't think you can sue the FBI for executing a warrant, unless they have gone beyond the scope of what was permitted in the warrant.

And as I understand, it isn't the FBI that is deleting the data, but rather a subcontractor whose bills have not been paid since Megaupload's assets have been frozen. I really don't see grounds for suing the FBI here.

Still, I don't think you can sue the FBI for executing a warrant, unless they have gone beyond the scope of what was permitted in the warrant.

They froze the assets of a company that hasn't been found guilty of anything yet? Why are they allowed to do that? There is certainly a possibility that MegaUpload will be found not guilty and then who's going to refund the costs, recover the data and refund the lost user fees??

There is certainly a possibility that MegaUpload will be found not guilty and then who's going to refund the costs, recover the data and refund the lost user fees??

Yes, but there's an equal possiblity that Kim Dotcom will just withdraw all the money, bury most of it in a hole in the desert, and spend the rest on Blow and Hookers before he ends up in jail. It's pretty typical for a Court to freeze assets that appear to have come from illegal activity pending trial for just this reason. If you come back not-guilty, you typically get your money back. That's when the Income Tax Evasion trials typically start...

When the U.S. Attorney decides to indict someone under RICO, he or she has the option of seeking a pre-trial restraining order or injunction to temporarily seize a defendant's assets and prevent the transfer of potentially forfeitable property, as well as require the defendant to put up a performance bond. This provision was placed in the law because the owners of Mafia-related shell corporations often absconded with the assets. An injunction and/or performance bond ensures that there is something to seize in the event of a guilty verdict.

But it's pretty hard to hold someone accountable when they cannot defend themselves because you tied up there financing so much that the evidence they had to defend themselves has been destroyed.The only evidence the FBI supbeoned was evidence again Megaupload.I am pretty sure that Megaupload's lawyers see this as being either good (we will use this as doubt) or bad (how will we defend ourselves without this as evidence) but they will certainly have an opinion. That they aren't talking about this in legal

Not for executing the warrant, no. For then destroying the business and causing the destruction of legally stored files before even bothering with a formality of a trial. There is an ethical responsibility to not cause irreparable harm unless/until a guilty verdict is returned. There is also an ethical duty not to cause harm to innocent 3rd parties.

The correct answer is to give everyone a chance to download their data before it is erased.

I've run into all of the following in the days since MegaUpload has been down:

Stepmania files for public domain, CC, etc. compositionsPodcastVideo coverage of an eventRip of (public) art/drawing stream

There would also be quite a bit of original as-seen-on-youtube music, but thankfully that usually ends up on Mediafire. Quite frankly I can't imagine the last time I downloaded something not CC, public domain, or clearly free use from such a service. While I won't pretend that sites like MegaUpload don't hav

Users who signed up [slashdot.org] agreed that they had no combacks if they lost data. Users bear all risks of data loss. It gets hairy because this isn't Megaupload deciding to stop operating (as described in that TOS); rather, it's someone else deciding on their behalf. But you're still on a sticky wicket if you already agreed that you shouldn't keep your sole copy on Megaupload and it's your fault if something happens to your data.

Except when it impacts customers in other countries where the laws are different. See, in Canada the FBI doing this falls under the clause of causing mischief. Regardless of whether or not there's an ongoing criminal investigation. This is one of the reasons why if your data is taken in canada, your data is safe in canada. If the US government wants to play the 'we can reach across the border and do shit'

Per 430CC

Mischief in relation to data

(1.1) Every one commits mischief who wilfully

(a) destroys or alters data;

(b) renders data meaningless, useless or ineffective;

(c) obstructs, interrupts or interferes with the lawful use of data; or

(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.

Well...they might get a nasty surprise. Since our extradition treaty covers mischief, and

Not really true. Canada law looks at the full chain of events along with the aggravating and mitigating circumstances of the charge. If a case is before the courts, but there isn't enough prohibitive cause in our system to keep something offline. Then you're denying the right of paid customers to access their data. Which means you're denying access. You're welcome to believe whatever you want, but US law != law everywhere. And Canadian law says not legal, until it goes through the courts.

Can't sue unless the government says you can. Remember, the FTCA does not cover everything involved here. Also, the FBI isn't deleting anything. They removed access for users, as well as seized the accounts used to pay the bills to the server companies. It would be Carpathia and Cogent doing the deletion due to the bills not being paid.

So it would be like the FBI preventing access to a parking building full of cars. Then allowing the land owners to demolish it, because the management cannot pay the owners. The FBI then arrests anyone entering on trespassing charges, and allows the owners to demolish the building. The rubble including the cars is then re-purposed by the land owners.